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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10307
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20551-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN AGUILAR-IBARRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 22, 2014)
Before CARNES, Chief Judge, HULL and FAY, Circuit Judges.
PER CURIAM:
Edwin Aguilar-Ibarra appeals his 87-month sentence, imposed after he
pleaded guilty to conspiracy to commit a Hobbs Act robbery and the commission
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of a Hobbs Act robbery. See 18 U.S.C. § 1951. He challenges the district court’s
application of a two-level bodily injury enhancement under § 2B3.1(b)(3)(A) of
the United States Sentencing Guidelines, contending that the court erred in
concluding that his objection to the enhancement was both untimely and without
merit.
I.
In the pre-dawn hours on January 15, 2012, four masked men, including
Aguilar-Ibarra, entered a Florida warehouse brandishing replica semi-automatic
pistols. The intruders bound, gagged, and then forced a warehouse employee into
a back office, where they assaulted him and secured him to a chair with duct tape.
One of the assailants then used a warehouse forklift to load over half a million
dollars’ worth of cellular phones into a truck that had been stolen from a nearby
business.
Aguilar-Ibarra’s presentence investigation report (PSR) calculated a total
offense level of 27, which included a two-level increase under U.S.S.G.
§ 2B3.1(b)(3)(A) because a victim of the robbery had sustained bodily injury. In
support of that enhancement, the PSR indicated that the warehouse employee “was
taken to the hospital for minor injuries” as a result of the assault. Aguilar-Ibarra’s
total offense level, when coupled with his criminal history category of I, yielded a
sentencing guidelines range of 70 to 87 months imprisonment. Aguilar-Ibarra did
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not file any written objections to the PSR within the 14-day period prescribed by
Federal Rule of Criminal Procedure 32(f)(1).
At sentencing, defense counsel objected to the bodily injury enhancement,
asserting that she and the government had agreed that the enhancement should not
apply because there was no evidence that the warehouse employee had sustained
any bodily injuries, and because it had not been applied at the sentencing of
Aguilar-Ibarra’s co-conspirators. The government’s attorney, laboring under the
mistaken impression that the two-level enhancement required proof of serious
bodily injury, confirmed that “the victim did not sustain a serious bodily injury.”
The district court, after recounting the factual allegations in the PSR and
emphasizing that the two-level enhancement did not require the presence of serious
bodily injury, asked the parties whether they disputed the PSR’s statement that the
warehouse employee had sustained minor injuries and was taken to the hospital.
The government initially responded that it had “no evidence that there were bodily
injuries,” but quickly clarified that it had no evidence of “the extent of those
injuries” and that it did not dispute that the victim had suffered minor injuries.
Defense counsel similarly stated that she was not disputing the factual allegations
in the PSR, though she was unable to ascertain the nature of the victim’s injuries.
The district court then questioned the probation officer about the source of
the information included in the PSR. The probation officer responded that the
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government had provided that information and that he was “familiar with the
related case” against Aguilar-Ibarra’s co-conspirators because he “covered [their]
sentencing hearing.” The probation officer also clarified that the co-conspirators
had indeed received the bodily injury enhancement at sentencing. Defense counsel
conceded that she misunderstood what occurred at the co-conspirator’s sentence
hearing and stated that she had “nothing further” on the enhancement issue. The
court then overruled Aguilar-Ibarra’s objection as both “untimely” and “without
merit.” After adopting the PSR in full, the court sentenced Aguilar-Ibarra to a total
term of 87 months imprisonment. When asked whether he had any objections to
the court’s factual findings and sentence, Aguilar-Ibarra replied, “No.”
II.
Aguilar-Ibarra contends that the district court erred in rejecting his objection
to the bodily injury enhancement as untimely. He asserts that the time limit for
filing objections to the PSR was inapplicable in this case because he and the
government agreed that the enhancement should not apply, and, in any event, the
court exercised its discretion to waive the timeliness requirement when it
considered and ruled on the merits of his objection.
Rule 32(f)(1) of the Federal Rules of Criminal Procedure provides that
“[w]ithin 14 days after receiving the [PSR], the parties must state in writing any
objections, including objections to material information, sentencing guideline
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ranges, and policy statements contained in or omitted from the report.” Fed. R.
Crim. P. 32(f)(1). After receiving any written objections from the parties, the
probation officer “may meet with the parties to discuss the objections,”
“investigate further,” and “revise the presentence report as appropriate.” Fed. R.
Crim. P. 32(f)(3). At least seven days before sentencing, the probation officer
must submit the PSR to the court along with “an addendum containing any
unresolved objections, the grounds for those objections, and the probation officer’s
comments on them.” Fed. R. Crim. P. 32(g). For good cause shown, however, the
district court may extend the 14-day deadline for filing objections to the PSR, see
Fed. R. Crim. P. 32(b)(2), or “allow a party to make a new objection at any time
before sentence is imposed,” Fed. R. Crim. P. 32(i)(1)(D).
Aguilar-Ibarra did not comply with the 14-day deadline for objecting to the
contents of the PSR, and there is no merit to his contention that the deadline was
inapplicable because the parties agreed that the bodily injury enhancement should
not apply. Aguilar-Ibarra takes the position that the procedures mandated by Rule
32(f) are simply designed to “resolve disputes between the parties” and that it is
therefore unnecessary to submit written objections in advance of sentencing “to
correct an undisputed error in the [PSR].”
Rule 32(f)(1), however, clearly provides that all objections to the PSR,
whether or not they are shared by the parties, must be submitted in writing well in
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advance of sentencing. And the manifest purpose of Rule 32 as a whole, of which
the procedures and deadlines mandated by subsection (f) are an integral part, is not
simply to resolve disputes between the parties; it is to ensure that the district court
can meaningfully exercise its sentencing authority based on a complete and
accurate account of all relevant information. See Fed. R. Crim. P. 32(c)–(f)
(mandating the preparation and submission of a PSR in advance of sentencing so
that a district court can “meaningfully exercise its sentencing authority under 18
U.S.C. § 3553”); Fed. R. Crim. P. 32 advisory committee notes (1975) (explaining
that because “presentence reports are important aids in sentencing,” it is “essential
that the presentence report be completely accurate in every material respect”). The
deadlines imposed by subsection (f) are meant to facilitate this process by ensuring
that the probation officer has an adequate opportunity to investigate and resolve
any potential inaccuracies in the PSR, regardless of whether those inaccuracies are
perceived by one or both parties. See Fed. R. Crim. P. 32 advisory committee
notes (1994). Aguilar-Ibarra’s position not only runs counter to the clear import of
Rule 32(f)(1), but also ignores two fundamental, intertwined tenets of sentencing
law — that a district court has an independent obligation to “calculate correctly the
sentencing range prescribed by the Guidelines,” United States v. Gibson,
434 F.3d
1234, 1243 (11th Cir. 2006) (quotation marks omitted), and that it is therefore “not
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bound by the parties’ agreements or recommendations” at sentencing, United
States v. Johnson,
132 F.3d 628, 630 (11th Cir. 1998).
Although it is certainly true that the district court had the discretion to waive
the timeliness requirement for good cause, Aguilar-Ibarra did not show cause for
failing to timely raise his objection to the bodily injury enhancement, and the
district court did not exercise its discretion to waive the timeliness requirement.
The court expressly overruled Aguilar-Ibarra’s objection as untimely, and although
it alternatively addressed the merits of that objection, the court “never indicated
that it would excuse the [timeliness requirement] and decide the [] issue solely on
the merits.” See United States v. Milian-Rodriguez,
828 F.2d 679, 683 (11th Cir.
1987) (district court’s decision to deny a suppression motion both on timeliness
grounds and on the merits did not excuse the untimeliness of the motion where the
district court “never indicated that it would excuse the waiver and decide the []
issue solely on the merits”). The district court did not err in overruling Aguilar-
Ibarra’s objection to the § 2B3.1(b)(3)(A) enhancement as untimely. For that
reason, we treat the matter as if no objection had been made.
III.
Aguilar-Ibarra argues that the district court erred in applying the
§ 2B3.1(b)(3)(A) enhancement because there was no evidence that the robbery
victim sustained any bodily injury, and the government purportedly conceded the
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absence of such evidence at sentencing. He also argues that even if the district
court could rely solely on the factual allegations contained in the PSR, those
allegations do not support a finding of bodily injury, as defined by the guidelines,
because the PSR did not describe the precise nature of the victim’s injuries or
specify that they were of a type that ordinarily would require medical attention.
As we have discussed, because Aguilar-Ibarra did not file a timely objection
to the bodily injury enhancement, and because the district court did not waive the
applicable time limit for good cause shown, we review the present claim for plain
error only. See United States v. Parrish,
427 F.3d 1345, 1346 (11th Cir. 2005)
(“[W]e review for plain error those issues to which the defendant did not make
timely objections in the district court.”). Under plain error review, Aguilar-Ibarra
bears the “burden of establishing that (1) there is an error; (2) that is plain or
obvious; (3) affecting his substantial rights in that it was prejudicial and not
harmless; and (4) that seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.” United States v. Beckles,
565 F.3d 832, 842 (11th
Cir. 2009) (quotation marks and brackets omitted). “Before an error is subject to
correction under the plain error rule, it must be plain under controlling precedent or
in view of the unequivocally clear words of a statute or rule.” United States v.
Schmitz,
634 F.3d 1247, 1270–71 (11th Cir. 2011) (quotation marks omitted).
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Section 2B3.1 of the sentencing guidelines, which governs robbery offenses,
imposes varying degrees of enhancements if “any victim sustained bodily injury.”
U.S.S.G. § 2B3.1(b)(3). The guidelines call for a two-level enhancement in the
event of “[b]odily [i]njury,” a four-level enhancement for “[s]erious [b]odily
[i]njury,” and a six-level enhancement for “[p]ermanent or [l]ife-[t]hreatening
[b]odily [i]njury.”
Id. Bodily injured is defined by the guidelines as “any
significant injury; e.g., an injury that is painful and obvious, or is of a type for
which medical attention ordinarily would be sought.”
Id. § 1B1.1, cmt. n.1(B).
When a defendant challenges one of the factual bases of his sentence, the
government must prove the disputed fact by a preponderance of the evidence.
United States v. Gupta,
572 F.3d 878, 887 (11th Cir. 2009). A district court may,
however, base its factual findings on undisputed statements in the PSR, because a
defendant is deemed to have admitted any such statements that he has not objected
to “with specificity and clarity.”
Beckles, 565 F.3d at 843–44 (quotation marks
omitted). “Indeed, the defendant’s failure to object to conclusory statements in the
[PSR] renders those statements undisputed and permits the sentencing court to rely
upon them without error even if there is an absence of supporting evidence.”
Id. at
844.
Although Aguilar-Ibarra argued at sentencing that there was no evidence
that the warehouse employee had sustained any bodily injuries, he did not dispute
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the PSR’s factual statements that the employee suffered minor injuries as result of
being assaulted and was taken to the hospital for those injuries. In fact, when the
district court pointedly asked both parties whether they disputed that portion of the
PSR, they affirmatively stated that they did not. Because Aguilar-Ibarra did not
specifically and clearly object to these factual statements contained in the PSR, he
is deemed to have admitted them and the district court was entitled to rely on them
even in the absence of supporting evidence. See
id. at 843–44.
And based on the undisputed facts in the PSR that the victim was assaulted
by multiple masked men brandishing replica firearms and then transported to the
hospital with minor injuries, the district court did not plainly err in concluding that
the victim sustained a bodily injury within the meaning of the guidelines. The
court could have reasonably inferred from these undisputed facts that the victim’s
injuries were either “painful and obvious” or “of a type for which medical attention
ordinarily would be sought.” See U.S.S.G. § 1B1.1, cmt. n.1(B). Aguilar-Ibarra
has not cited any controlling precedent from this circuit or the Supreme Court
holding otherwise, and the fact that the PSR did not specifically describe the nature
of the “minor injuries” sustained by the victim does not render the district court’s
application of the § 2B3.1(b)(3)(A) enhancement plainly erroneous. We therefore
affirm Aguilar-Ibarra’s sentence.
AFFIRMED.
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